Stewart v Sutherland Shire Council (No 2) [2005] NSWLEC 771

Stewart v Sutherland Shire Council (No 2) [2005] NSWLEC 771

Lots B and C were not internal allotments because each had frontage to Novara Crescent and, with minor excavation, it was feasible to install a driveway from each lot directly to that public road. The land therefore possessed practical lawful vehicular access to Novara Crescent, and the question whether another means of access from Pavia Road should be made available was a merits question rather than a question of law.

Jurisdiction
Australia
Judgment Date
16 December 2005
Procedural Posture
Appeal Against Conditions Imposed on a Development Consent for Subdivision / Preliminary Question of Law; Ex Tempore Judgment
Outcome
The Court determined the preliminary question of law in the applicant's favour, holding that the deletion of conditions 8 and 9 and the resultant change in access did not render lots B and C internal allotments as defined in the Sutherland Shire Local Environmental Plan 2000.
Legal Topics
['subdivision' 'development Consent Conditions' 'internal Allotments' 'vehicular Access' 'interpretation of Local Environmental Plan']
['planning and Environment Law'] ['subdivision' 'development Consent Conditions' 'internal Allotments' 'vehicular Access' 'interpretation of Local Environmental Plan']

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Procedural Posture

Appeal Against Conditions Imposed on a Development Consent for Subdivision / Preliminary Question of Law; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether deletion of conditions 8 and 9 of development consent number 041283 and the resultant change in access to the development from Pavia Road to Novara Crescent rendered lots B and C internal allotments within the meaning of the Sutherland Shire Local Environmental Plan 2000.']

Ratio Decidendi

Lots B and C were not internal allotments because each had frontage to Novara Crescent and, with minor excavation, it was feasible to install a driveway from each lot directly to that public road. The land therefore possessed practical lawful vehicular access to Novara Crescent, and the question whether another means of access from Pavia Road should be made available was a merits question rather than a question of law.

Court Disposition

The Court determined the preliminary question of law in the applicant's favour, holding that the deletion of conditions 8 and 9 and the resultant change in access did not render lots B and C internal allotments as defined in the Sutherland Shire Local Environmental Plan 2000.

Orders

  • ['The question of law was answered: the deletion of conditions 8 and 9 of development consent number 041283 issued by the respondent and the resultant change in access to the development from Pavia Road to Novara Crescent does not render lots B and C internal allotments as defined in the Sutherland Shire Local...